#2_Posted work in Europe

Posted workers are sent across borders to work for clients in another country than their home country. Posted workers are predominantly found in agriculture and food-processing industries such as meat-packaging, the construction sector and the medical and elderly care sector, but also have been deployed in other segments of manufacturing and services. For the European Union, estimates stand around 2,05 million posted workers (2015) as counted by registered forms which compares to an overall workforce in the EU of about 227 million people (Eurofound 2018).

In today’s world of precarious work, posted work is an exemplar of the weaknesses in labour inspection. Emerging from subcontracting and fuelled by cross-border wage differentials, posted work reveals the difficulties of state authorities and unions in protecting the working conditions by upholding minimum labour standards. In a study on the German case, Ines Wagner summarizes the reality of posted workers in these words:

“(…) employers prefer temporary migrant workers as a cheap, exploitable source of labor; agents channel migrants across borders; and, unfortunately, labor migrants are (..) blamed (…) for degrading the nation through “benefit tourism” or “poverty migration.” (Wagner 2018, p. 4)

Apparently, posted workers face inferior working and employment conditions that repeatedly cross the line of blatant exploitation even in Germany, a country usually known for rather strong labour laws, effective rule enforcement and embedded in European Union regulation for cross-border business activities. In fact, the labour standard violations in posted work include the disrespect of maximum working hours, the circumvention of minimum wage regulation, the withholding of annual leave pay, charging posted workers undue amounts of money for transport, tools, work clothing and housing as well as avoiding payments for social security contributions and responsibility for work-related accidents. On top, posted workers are treated as a marginalized group of workers, including discriminatory treatment.

The adverse conditions under which posted workers earn their living, call for a strengthening of labour inspection. According to Ines Wagner (2018), client firms and their various subcontractors exploit weak enforcement procedures, use legal loopholes, and do not even shy away from blatant law-breaking. Recent media reports around the Covid19 outbreaks in several meat-packaging facilities in Germany are a sad confirmation of these findings. In addition, posted work is plagued by serious disadvantages of collective worker representation caused by the cross-border nature of the entire arrangement.

The case of posted work reveals a gap between formal regulation and the realities on the ground. The laws are in place and intended in wording to give posted workers a minimal protection. In principle, labour inspection agencies should uphold these rules and employers and unions could negotiate collective agreements for improving these legal standards. However, as Ines Wagner shows, the cross-border nature of posted work creates a situation in which basic labor standards are violated in practice even despite European regulators’ best intentions. In a detrimental mix of weak regulation, administrative barriers in cross-border rule enforcement, employers’ practices as well as unions’ weakness and the powerlessness of posted workers themselves, an effective enforcement of basic labour standards is replaced by a “No plaintiff, no judge!”- situation. This sheds a critical light on the political and legal rationales for defining posting within the framework of the European treaties as an economic freedom of service providers rather than an area for protecting workers’ rights.

How to improve this situation for posted workers? Ines Wagner makes a couple of interesting suggestions: (1) unions could try to reach collective agreements which discourage client firms from using posted work altogether, (2) in Germany, works councils should have a say in client firms on how posted workers are brought in, (3) the subcontractors arranging for posted work could be regulated by increasing the requirements for incorporation, e.g. registration in the country where they are active, (4) allowing collective litigation of posted workers, and (5) the establishment of an European agency for labour inspection with administrative jurisdiction and resources for enforcing the regulations already in place.

Reference: Ines Wagner. 2018. Workers without borders. Posted work and precarity in the EU. Ithaca and London: ILR Press

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